It is unlikely that consumers would trust expiry dates on poultry products following the scandal that rocked SA in December last year, especially since the effective date of the R.146 Legislation has been moved to 1 March 2012.
News24 ran with a few articles in December last year which suggested that South Africans have been buying and eating tons of old and repackaged frozen chickens for years. According to the news reports, Supreme Poultry was allegedly washing, injecting, rebranding and then reselling the chickens with new expiry dates to outlets such as Pick n Pay and Shoprite Checkers.
The source of the reports was Johan Matthee, a former production manager at Supreme Poultry, who is currently involved in a labour dispute with the company. However, according to Rapport newspaper, his claim was confirmed by two other former employees. Matthee alleges that some chickens were even treated with chlorine to reduce the bacterial load before repackaging the poultry.
These reports allege that a standard practice exists where poultry packages past their sell-by date are repacked and sent back to retail outlets to be sold again with new expiry dates. With the new R.146 Foodstuffs Labelling Regulations, now only coming into effect on 1 March 2012, the big question of how retail outlets can trust the expiry date on poultry , is bought to the fore.
Janusz Luterek, an engineer and a partner at Hahn & Hahn Attorneys in Pretoria, represents leading retailers and food manufacturers in such matters and he shared his personal views on this issue.
‘The correct use of terminology is critical to this matter since the term‘re-worked’ seems to be used to indicate that the returned chicken is rendered into bone meal or animal food in some or other way, whereas ‘re-processed’ seems to indicate that the returned expired chicken is in some or other way processed or re-packed and put back into the trade, albeit into different channels. I do not think that these are legal definitions or dictionary definitions but rather terminology used in the poultry industry to differentiate the two activities,’ writes Luterek.
According to his report, there is no microbiological standard in any regulation under either the Department of Health or the Department of Agriculture for raw poultry as such and thus there is no absolute standard against which either freshly processed or re-processed poultry must be measured. It appears that industry has its own standards which are applied and audited against.
‘However, the Foodstuffs, Cosmetics and Disinfectants Act does make it a criminal offence in Section 2(1)(b) to ‘ sell, or manufacture or import for sale, any foodstuff . . . which is contaminated, impure or decayed . . .’ and at Section 2(1) (c)(iv) to ‘sell, or manufacture or import for sale any foodstuff . . . which has been treated in such manner that its damaged or in unsound condition or inferior quality is concealed whether entirely or partly,’ writes Luterek
According to Luterek, one can argue that keeping chicken frozen for a year does not lead to contamination but it must surely lead to reduction in quality; otherwise why go through a re-packing exercise and selling it through different channels than it was originally sold?
Surely, if there was no reduction in quality and it was safe, the producers would merely peel off the old expiry date sticker and stick on a new one and sell it through the same channels as it was originally sold, such as the major retailers? But Janusz emphasised that all is not lost for the consumer, thanks to the implementation of the Consumer Protection Act that is due on 31 March 2011.
‘The CPA prohibits the deception or misleading of consumers as to any matter which is material to their choice or selection of a product, which based on the public reaction to this story, would include the removal of a sell-by or use-by date and re-processing the chicken followed by the repacking and re-dating thereof,’ said Luterek.
He added that ‘. . . if anyone were to suffer any harm as a result such a re-processed chicken being contaminated then they would also have a claim for damages under the CPA against the packer or distributor.’
Furthermore, he also referred to the hygiene regulations, also known as R918, which do permit the thawing and re-freezing of food products as long as the thawed food product’s surface temperature at no time exceeds 7°C. However, Luterek stated that although this provision is stated generically, it is in the context of the hygiene on food premises and he does not think it applies to food products which have left the premises of the packer and is returned a year later for thawing and re-processing!
According to him the legal situation is a mess with no single law or regulation clearly prohibiting the practice and it is simply a case where ‘too many cooks spoil the broth.’ That leaves the matter open to interpretation and could be exploited by unscrupulous suppliers.
‘In this case there are too many regulations and sections of Act skirting the issues but the bottom line remains that if the product is found to be in anyway unsafe or unsound there will be consequences, huge consequences, both criminal under the Foodstuffs, Cosmetics and Disinfectants Act and civil, under the CPA (claim by a consumer) and perhaps even administrative if the National Consumer Tribunal were to take up the matter and then rule it to be a prohibited conduct!’
Izaak Breitenbach, managing director at Supreme Poultry, spoke to Food Review about the allegations and said that Supreme never changes expiry dates, that the small percentage of product that is reworked is perfectly safe and in order and that it has never been reworked beyond the expiry date.
‘Reworking is standard industry practice and there are several operations in South Africa dealing in imported products whose sole business is the import, defrosting, cutting into portions, brining, refreezing, packaging and distribution into the wholesale and retail trade,’ said Breitenbach.
According to him these are legal industry-wide practices and procedures, and are not exclusive to Supreme Poultry.
‘It’s noteworthy that less than 1% of Supreme’s production is reworked,’ he said.
He added that in terms of disclosure, Supreme’s disclosure is in line with current legal requirements.
‘Our company will also comply fully with the new labelling regulation R.146 in all respects when it comes into effect on 01 March 2012, as well as any other new foodstuffs legislation,’ he added.
He also explained that Supreme is regularly audited by both internal and external bodies, and recently had an unannounced audit by both the Manguang Municipality Health department as well as a large retail group.
‘The Muslim Judicial Council Halaal Trust has also performed a comprehensive Halaal audit and all of these parties have found Supreme to be in compliance with relation to food safety,’ he said.
He confirmed that all three of its abattoirs are HACCP-accredited by the SANS authority and elaborated that it even won numerous awards for hygiene and processing standards.
He stressed that he is more than happy to have Supreme undergo an audit of its food safety and security procedures and quality control by a credible independent third party.
‘Finally, with regard to the claim that Supreme reworked ‘rotten’ products’, we have been granted an urgent interdict against the aggrieved former employee who made this spurious claim as we were able to prove that the stock in question had been destroyed. No stock unfit for human consumption has ever been or ever will be sold by Supreme,’ said Breitenbach.
One of the major retailers that was implicated for selling re-worked chicken also raised their opinions on the matter. Tamra Veley, spokesman for Pick n Pay, confirmed that Supreme Poultry is a supplier of Pick n Pay’s No Name Individually Quick Frozen (IQF) chicken portions.
‘However, no refrozen or remarked chickens are ever supplied to or sold in any Pick n Pay store anywhere in the country. The health and safety of our customers is our principle priority,’ said Veley.
She added that when the story was first published in Rapport newspaper, Pick n Pay immediately made an unannounced visit to Supreme Poultry near Bloemfontein. She explained that a team from Pick n Pay flew to Bloemfontein to visit the premises so that they could reassure both customers and themselves that there was no chance of this happening at any Pick n Pay store.
‘We visited their premises and inspected their documentation relating to procedures and principles. We are 100% satisfied that no chickens sold to Pick n Pay have ever or will ever be refrozen and remarked with new expiry dates. From our side, turnover is so fast in our stores that there would be no opportunity for any undamaged returns. Damaged returns from our supermarkets are sent to the Health Department for destruction,’ she said.
She added that in the case of hypermarkets, damaged products are returned to Supreme for conversion into bone meal and ‘our audit demonstrated this to be the case.’
She also stressed that Pick n Pay has a strict food-safety and quality-verification programme in place.
‘The Company requires all its food suppliers to undergo an annual food safety audit by an independent third party. Auditors are formally registered and have vast experience in the related field that they audit. The audit scores on all three facilities for Supreme are above 90% with an A rating, which is an exceptional score,’ she said.
According to Veley, Pick n Pay has a dedicated poultry technologist who visits all the factories of all poultry suppliers on a regular basis. During the visits the facility is inspected and the food quality document system is reviewed. All returned product is documented in order for the company to have a record of all returned product being re-worked. Supreme Poultry’s return’s policy stipulates that all returned/rejected poultry is sent to the rendering plant,’ she said.
‘We do regular quality control tests in our test kitchens where the chicken is cooked and evaluated against our specification. The company also has a quality control system in place at our distribution centres where the product being delivered is checked for quality against our requirements. We also monitor our customer complaints which assists us in picking up quality problems.’
One retailer not implicated in the saga is Woolworths and Zyda Rylands, the MD of Woolworths Food, said, ‘Woolworths insists on exceptionally high quality and safety standards and would never subscribe to the practices described in the media reports. Further, Woolworths does not source from the supplier in question,’
Rylands continued by saying that all Woolworth’s products have codes that allow it to trace individual products to their source. ‘All Woolworth’s suppliers are required to abide by our principles that ensure products meet our stringent ethical, safety and quality standards. Suppliers are independently audited to ensure that they comply with our high standards,’ she said and added that anyone can refer to its sustainability report with regard to surplus food.
A lot of people in the industry were waiting for the R.146 to come into effect on1st March this year, but in March last year the Minister of Health, Dr Aaron Motsoaledi, published a Government Notice, known as the R.1091, and amended the implementation date to 24 months from publication – ie 1 March 2012.
According to Andries Pretorius, director of food control and chairperson of the Food Legislation Advisory Group (FLAG), the implementation date of R.146 has been extended as a result of requests made by a number of mainstream manufacturers and retailers who indicated that it will not be possible for them to ensure full compliance to all the provisions of the new regulations for various reasons of a technical and logistical nature.
The extension is included in a notice published in the Government Gazette in November 2010, available on the webpage of the Directorate Food Control at http://www.doh.gov.za/department/dir_foodcontr-f.html
As far as the selling of expired products is concerned, Pretorius said that it should be noted that the new labelling regulations do not directly prohibit the sale of foodstuffs of which the dates in question have expired.
‘However, in the case of a ‘use by’ or ‘expiry date’ provided on the label, it should be brought to the attention of the owner of the foodstuffs that after such date the food should not be regarded as marketable any further. In terms of the provisions of R.146/2010, EHPs are, thus still not in a position to reject/condemn/confiscate foodstuffs based merely on a date on the label, that has expired.’
But he added that in the event of a foodstuff considered to be unfit for human consumption based on physical or organoleptic characteristics such as colour, smell, taste, texture, etc, (irrespective of whether the date on such a foodstuff is expired or not), an EHP should take remedial action in terms of the provisions and procedures provided for in the Inspection Regulations (R.328 of 20 April 2007).
‘Otherwise, in the event where the date on a product has expired and the suspicion exists that the product is not fit for human consumption, a sample of such foodstuff should be taken. Based on the result of the analysis thereof, the necessary actions of disposal of the foodstuff should be taken in terms of the Inspection Regulations,’ said Pretorius.
